69-year-old occupational therapist unlawfully terminated. $9.3M. San Diego County.

Summary

Employer ignores CFRA obligations when plaintiff takes family time off to care for an adult son.  

The Case

  • Case Name: Marilyn Buron v. Occupational Health Centers of California, et al.
  • Court and Case Number: San Diego County Superior Court / 37-2021-00026852-CU-WT-CTL
  • Date of Verdict or Judgment: Wednesday, December 20, 2023
  • Date Action was Filed: Monday, June 21, 2021
  • Type of Case: Employment, Highlighted Verdicts
  • Judge or Arbitrator(s): Hon. Marcella McLaughlin
  • Plaintiffs:
    Marilyn Buron, 71, certified occupational hand therapist
  • Defendants:
    Occupational Health Centers of California
    Concentra Health Services, Inc.
  • Type of Result: Jury Verdict

The Result

  • Gross Verdict or Award: $9,372,000
  • Non-Economic Damages:

    $1,560,000

  • Punitive Damages:

    $7,810,000

  • Trial or Arbitration Time: 14 days
  • Jury Deliberation Time: General damages – 1 day / Punitive damages – 2 hours

The Attorneys

  • Attorney for the Plaintiff:

    Harlan Law, PC by Jordon R. Harlan, San Diego.

    Hillier DiGiacco, LLP by Andrew E. Hillier and Francis A. DiGiacco, San Diego.

  • Attorney for the Defendant:

    Jackson Lewis, PC, by Thomas Mackey and David Hoiles, Jr., Los Angeles.

The Experts

  • Plaintiff's Technical Expert(s):

    Charles Mahla, Ph.D, economics.

  • Defendant's Technical Expert(s):

    None.

Facts and Background

  • Facts and Background:

    Occupational Health Centers of California employed plaintiff as an occupational therapist. Concentra Health Services, Inc. was the contracted management company. Plaintiff alleged the two defendants jointly employed plaintiff or were, in fact, an integrated enterprise.

    In late 2020, plaintiff's adult disabled son fell ill and had to undergo emergency, life-saving surgery. Plaintiff was forced to take a leave of absence from her job to care for her son. That leave of absence was protected under the California Family Rights Act (CFRA). While plaintiff was on job-protected leave, defendants, including executives of Concentra made the decision to terminate plaintiff's employment contract. They then replaced her with a less qualified occupational therapist who was 41 years younger than plaintiff.

    Defendants did not inform plaintiff of their decision to terminate her contract until she returned from leave over a month after the decision was made. When plaintiff returned to work, she was relegated to seeing fewer patients and performing menial tasks.

    Plaintiff alleged that defendants interfered with her right to take job-protected CFRA leave, discriminated against her on the basis of her association with a disabled person, discriminated against her on the basis of age, and retaliated against her for opposing the unlawful termination.

  • Plaintiff's Contentions:

    Plaintiff, at the time a 69-year-old certified occupational hand therapist, alleged she was replaced by a less qualified 28-year-old while on approved CFRA leave to care for her adult disabled son, who had to undergo emergency surgery. Plaintiff alleged the decision to terminate her employment contract was based on her relationship with her disabled son, her age and her use of CFRA leave to care for her son. Plaintiff asserted claims for violation of her CFRA leave of absence rights, age discrimination, association disability discrimination and retaliation.

  • Defendant's Contentions:

    Defendants Occupational Health Centers of California and Concentra Health Services, Inc. denied all allegations.

    Defendants claimed plaintiff refused to work a full-time schedule in response to a request from her supervisor weeks before she went on her leave of absence. Defendants claimed plaintiff’s employment contract was terminated and she was placed in an “as needed” role to accommodate her desired work schedule.

    Defendant contended plaintiff found a new job only four months later working the exact schedule that defendants claimed she wished to work when she allegedly refused to work full-time, prior to taking her leave of absence.

Injuries and Other Damages

  • Plaintiff claimed past and future emotional distress damages, primarily focused on embarrassment, humiliation and anxiety.

Demands and Offers

  • Plaintiff Final Demand before Trial: $1,500,000, inclusive of fees and costs, about 18 months before trial.
  • Defendant Final Offer before Trial: None.

Additional Notes

  • Prior to closing argument, defendant offered the following: In complete resolution of plaintiff's claims and a confidential settlement agreement including general and special releases of all claims by plaintiff, defendants will pay to plaintiff the amount of $500,000, plus fees and costs to be determined by the court, provided that such fees and costs shall be no less than $1,000,000 and no more than $1,500,000. Plaintiff counteroffered a "high-low" of $4M - $9M, exclusive of fees and costs.
  • Immediately prior to punitive damages closing argument, defendant offered $5M, inclusive of fees and costs, in exchange for full resolution of the matter. Plaintiff declined the offer.